K.A. Francis and K.A. Joseph v. Rosily Paul and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944 AR NO. 100 OF 2021 ``` ## **`PETITIONERS:`** - `1 K.A.FRANCIS, CHIRIYANKANDATH KARAKKADA HOUSE, MARATHAKKARA, THRISSUR 680 306` - `2 K.A.JOSEPH, CHIRIYANKANDATH KARAKKADA HOUSE, MARATHAKKARA, THRISSUR 680 306` ``` BY ADVS.J.JULIAN XAVIER ROY JOSEPH ``` ## **`RESPONDENTS:`** - `1 ROSILY PAUL, W/O.LATE K.A.PAUL, KARAKKADA HOUSE, CHITTISSERY P.O., THRISSUR 680 301` - `2 SMT. PRINCY JOSHY, W/O.ADV. M.K.JOSHY, MANJALY HOUSE, THIRUMUDIKUNNU P.O., KORATTY, THRISSRUR 680 308` - `3 MS. PRIYA, W/O.BENNY M KALAN, KALAN HOUSE, NELLAYI P.O., THRISSUR, PIN 680 305` - `4 MS. PRENEE W/O. M.J. SAJEEV, MALIAKAL MADATHUMPIDI HOUSE, KAINOOR P.O, THRISSUR 680 14` - `5 MS. PRINDA W/O.JINTO P JOHN, KARAKKADA HOUSE, CHITTISSERY P.O., THALORE, THRISSUR 680 301` ``` 6SMT. GRACY RAPHEAL W/O.LATE K.A.RAPHAEL, CHIRIYANKANDATH KARAKKADA HOUSE, OLLUR PO, THRISSUR 680 306 ``` ``` AR NO. 100 OF 2021 ``` ``` -:2: ``` ``` 7SRI. GRIFFIN RAPHAEL, S/O.LATE K.A.RAPHAEL, CHIRIYANKANDATH KARAKKADA HOUSE, OLLUR PO, THRISSUR 680 306 ``` ``` R1 & R3BY ADVS.G.SREEKUMAR (CHELUR) R2 BYK.S.BHARATHAN R6 & R7 BYPIOUS MATHEW R2 BYALPHIN ANTONY R2 BYAADITHYAN S.MANNALI R2 BYVISAKH ANTONY R2 BYABEL ANTONY R2 BYCHRISTINE MATHEW R2 BYRANCE R. ``` ``` THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` AR NO. 100 OF 2021 ``` ``` -:3: ``` ## **Dated this the 27[th] day of June, 2022** ## **O R D E R** The arbitration request is filed under Section 11 of the Arbitration and Conciliation Act, 1996(in short, ‘Act’), seeking the appointment of a sole arbitrator to adjudicate upon the disputes that have arisen between the applicants and the respondents. 2. The applicants’ case, in brief, which is relevant for the determination of the arbitration request(A.R.) is that, they are the partners of a firm, named M/s Srinivas Rangan & Co., which was constituted pursuant to Annexure A1 deed of partnership. As per Annexure A1, (1) Sri. K.A.Paul, (2) Sri.K.A.Francis, (3) Sri.K.A. Raphael, and (4) Sri.K.A. Joseph were the original partners of the firm, which is engaged in the business of dealing in petroleum ``` AR NO. 100 OF 2021 ``` ``` -:4: ``` products under the authorized dealership of Bharat Petroleum Corporation Ltd. It is agreed that in the event of death of any partners, that the firm will come to an end and the same can be reconstituted only with the approval of the petroleum company. It is also agreed by the partners in clause 22 of Annexure A1 that in the case of any dispute or difference arising between the partners or their legal representatives, the same shall be referred for the decision of Senior Divisional Manger of the petroleum company, under whose jurisdiction the retail outlet is situated and the decision of the Arbitrator shall be conclusive and binding on all the partners. Sri. K.A.Paul and Sri. K.A. Raphael died on 8.12.2011 and 23.11.2016, respectively. On the death of Sri. K.A. Paul, the applicants have taken earnest effort to reconstitute the firm by inducting the legal heirs of Sri. K.A. Paul. ``` AR NO. 100 OF 2021 ``` ``` -:5: ``` Accordingly, Annexure A2 agreement was entered and signed by the existing partners and the new partners with the concurrence of the legal heirs of the deceased K.A. Paul. Thereafter, Sri.K.A. Raphael died on 23.11.2016. However, the legal heirs of Sri. K.A. Paul have raised a dispute with regard to the accounts and have declined to reconstitute the firm. The applicants have made request to the Petroleum Company as per Annexure A3 for reconstitution of the firm. Even though a hearing was conducted, the dispute was not resolved. Accordingly, the applicants have issued Annexure A5 lawyer notice. The respondents have sent Annexure A6 reply, agreeing to resolve their disputes through arbitration. Hence, the A.R. 3. The A.R. is opposed by the second respondent who has filed a counter affidavit, inter alia, contending ``` AR NO. 100 OF 2021 ``` ``` -:6: ``` that she has not signed Annexure A2. Her signature is forged. She has lodged Annexure R2(a) complaint before the jurisdictional police - Town East Police Station, Thrissur and crime No.2141/2021 has been registered and the investigation is in progress. Annexure A2 cannot be held against her. However, she reiterates her stand in Annexure A6 reply and request this Court to pass appropriate orders the A.R., leaving open her right to challenge Annexure A2. 4. Heard; Sri. Julian Xavier J, the learned counsel for the applicants and Sri. K.S. Bharathan, the learned counsel appearing for the second respondent. Sri.G. Sreekumar Chelur, the learned counsel appearing for the respondents 1 and 3. 5. Sri. Julian Xavier J argued that Annexure A2 was executed by the parties before the Executive Magistrate as early as on 19.06.2013. Even if the ``` AR NO. 100 OF 2021 ``` ``` -:7: ``` respondents dispute Annexure A2, still the disputes between the parties can be resolved as per clause 22 of Annexure A1. Moreover, the respondents cannot foreclose the rights of the applicants to get an arbitrator appointed on the alleged ground of forgery. in Annexure A2. Hence the A.R. may be allowed. 6. Sri. K.S. Bharathan vehemently argued that the sole concern of the second respondent is that the applicants are attempting to press into service Annexure A2, which is a fabricated document. Even though the police had filed a refer report in Crime No.2141/2021, the second respondent is proposing to initiate independent proceedings as against the refer report. The only concern of the second respondent is that the applicants should not seek any benefit on the basis of Annexure A2 . However, the second respondent has no objection in the dispute being ``` AR NO. 100 OF 2021 ``` ``` -:8: ``` resolved through as per clause 22 of Annexure A1. 7. The point that arises for consideration in this arbitration request is whether a sole arbitrator can be appointed to adjudicate on the disputes raised by the applicants. 8. Admittedly, both sides do not dispute Annexure A1. Clause 22 of Annexure A1 specifically provides that in the case of any dispute or difference between the parties, the same shall be resolved through arbitration. Invoking Annexure A1, the applicants have issued Annexure A5. The respondents have issued Annexure A6 reply, agreeing for the resolution of the disputes through arbitration, but provided that Annexure A2 is not acted upon. Therefore, the dispute in the A.R. is with regard to the authenticity of Annexure A2. Sri. Julian Xavier J contended that the applicants are not pressing for Annexure A2 and the ``` AR NO. 100 OF 2021 ``` ``` -:9: ``` A.R. may be decided on the basis of Annexure A1. 9. The Honourable Supreme Court in **Vidya Drolia and Others v. Durga Trading Corporation** [(2021) 2 SCC 1] has categorically held that even the allegations of serious fraud are raised, the same can also be considered and decided by the arbitrator. 10. In the light of the pleadings and materials on record and the law laid down in the afore-cited decision, and taking note of the fact that both sides want the disputes that have arisen between them to be resolved through arbitration, I do not find any ground to decline the allowing of the A.R.. Needless to mention, if the applicants press Annexure A2 into service before the arbitrator, the same shall also be considered by the arbitrator in accordance with law. In the above factual and legal matrix, I am inclined to allow the A.R. in the following manner: ``` AR NO. 100 OF 2021 ``` ``` -:10: ``` (i) Mr. Justice K.T. Shankaran, is appointed as the sole Arbitrator, to arbitrate upon the disputes that have arisen between the petitioners and the respondents arising out of Annexure-A1. (ii) The learned Arbitrator is at liberty to rule on his own jurisdiction, if the parties raise such a dispute. (iii) The Registry is directed to communicate a copy of this order to the learned Arbitrator within a period of ten days from today and to obtain a Statement of Disclosure from the learned Arbitrator as provided under Section 11(8) read with Section12(1) of the Act. (iv) Once the Disclosure Statement is obtained from the learned Arbitrator, the Registry shall issue the certified copy of this order to the learned Arbitrator, with a copy of the said statement appended to it, retaining the original of the same by this Court. (v) The fees of the learned Arbitrator shall be ``` AR NO. 100 OF 2021 ``` ``` -:11: ``` governed by the Fourth Schedule of the Act. - (vi) The learned Arbitrator shall decide the manner in which the fees and expenses of the arbitration proceeding has to be paid by the parties. (vii) The parties will appear before the learned Arbitrator on such date and place as decided by the learned Arbitrator. (viii) The seat and venue of the arbitration proceeding is fixed at Ernakulam, as per the convenience of the Arbitrator. (ix) All contentions of the parties are left open to be raised before the learned Arbitrator. Sd/- ## **C.S.DIAS,JUDGE** rmm/27/06/22 ``` AR NO. 100 OF 2021 ``` ## `-:12:` ## **`APPENDIX OF AR 100/2021`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE COPY OF THE PARTNERSHIP DEED DATED 1.4.1994 ``` - `Annexure A2 TRUE COPY OF THE AGREEMENT SIGNED ON 19.6.2013 BEFORE THE EXECUTIVE MAGISTRATE TALUK OFFICE, THRISSUR` - `Annexure A3 TRUE COPY OF THE LETTER DATED 13.8.2021 SUBMITTED TO THE TERRITORY MANAGER AND SALES OFFICER` - `Annexure A4 TRUE COPY OF THE MINUTES OF THE HEARING HELD ON 17.9.2021` - `Annexure A5 TRUE COPY OF THE LEGAL NOTICE DATED 3.10.2021 ISSUED TO THE RESPONDENTS` - `Annexure A5(A) TRUE COPY OF THE POSTAL RECEIPTS ISSUED FROM POSTAL DEPARTMENT RESPONDENTS` - `Annexure A6 TRUE COPY OF THE NOTICE DATED 20.10.2021 ISSUED BY SRI. K.K.GOPINATHAN ADVOCATE ON BEHALF OF RESPONDENTS 1 TO 5 AND REGISTERED ON 3.11.2021` ## **`RESPONDENTS ANNEXURE`** - `ANNEXURE R2(a) : TRUE COPY OF THE FIR 16.12.2021 IN CRIME NO2141/2021 OF TOWN EAST POLICE STATION, THRISSUR.` - `ANNEXURE R2(b) ANNEXURE R2(b) TRUE COPY OF THE FINAL REPORT.`